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People v. Kinion

OPINION FILED MAY 5, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARGARET KINION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT J. HORBERG, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 7, 1982.

Defendant Margaret Kinion was indicted for 63 counts of felony theft. After a jury trial in the circuit court of Rock Island, she was found guilty and sentenced to 63 concurrent 10-year terms of imprisonment.

The facts upon which the indictment was predicated are uncontroverted. In April 1976, defendant was hired as an account clerk by the City of Rock Island. In this capacity, she was involved with the city payroll and after receiving favorable job evaluations, she was promoted to city accountant in September 1977. In this capacity, defendant's primary responsibility was to post daily receipts in a cash journal. In September 1979, June Britton, who had responsibilities similar to those of defendant, called City Clerk William Tracey, Jr.'s attention to an irregularity she had discovered in the journal. A comprehensive audit followed. It established that defendant had manipulated the journal and appropriated approximately $14,000 in cash for her own use. It also established that she wrote herself 51 checks totaling over $50,000.

Defendant responded with an insanity defense. The evidence established that she had several times in the past been committed to institutions for psychiatric difficulties and was working with a psychiatric case worker up and through the period of the charges herein. Seven professionals testified at trial. Of the four who testified for the defense, three diagnosed defendant as schizophrenic and one as chronically psychotic. Dr. Bruce Danto stated that she could not discern right from wrong or conform her conduct to the law. Of the three who testified for the State, one diagnosed defendant as a severe hysteric, and two stated she had an antisocial personality. Dr. Truce Ordona and Dr. Werner Tuteur testified that defendant was legally sane at the times of the offenses. Additional facts will be presented in our discussion of the issues.

• 1 The first of the eight issues presented for our review is whether those convictions for the appropriations of cash must be reversed as the State allegedly failed to prove the acts were done without authority. Defendant contends the lack of direct proof of this element of the crimes was fatal to the State's case. While we recognize that section 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(a)) requires that a person must obtain or exert "unauthorized control over property" to commit theft, we find that the State met its burden in establishing this. Paul Berg testified that the only money which defendant was authorized to receive from the city was her paycheck, which was issued biweekly. It follows that the cash in question was taken without authority.

• 2 The second issue is whether the convictions must be reversed as the defense counsel allegedly labored under a conflict of interest. The alleged conflict claim stems from the fact that defendant executed a note, deed, and mortgage in counsel's favor in return for his services. Defendant contends that counsel would thus be interested in establishing her capacity to execute these instruments while inconsistently attempting to establish her unfitness for trial and insanity defense. Unfitness for trial occurs when a defendant is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-10.) Legal insanity occurs when a defendant lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (Ill. Rev. Stat. 1979, ch. 38, par. 6-2.) Capacity to contract requires that a party must be of "sufficient mental ability to appreciate the effect of what he is doing" and "be able to exercise his will with reference thereto." (Thatcher v. Kramer (1932), 347 Ill. 601, 609, 180 N.E. 434.) It is thus clear that three different standards are here involved, and a defendant could have the capacity to contract while being unfit for trial or legally insane. This being the case, we decline to adopt the per se conflict rule advocated by defendant. To adopt such a rule would mean that a per se conflict would arise retroactively in every case where a contract for the employment of private counsel had been entered into and thereafter an insanity defense was contemplated or raised. Actual prejudice must be shown. In this case defense counsel's representation of his client was vigorous, singleminded and diligent. No claim is made, and the record fails to demonstrate, that there were any deficiencies in the activities of defendant's counsel or any prejudice to her arising from the initial compensation arrangement and her representation.

• 3 The third issue presented for our review is whether the trial court erred in not dismissing the indictment or, alternatively, severing its counts. Section 111-4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-4(a)) provides:

"Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction."

Defendant contends the charged offenses are not part of the same comprehensive transaction as they took place over several years and were effected by different techniques.

While there is language to the effect that joinder is not permitted "where the crimes occur several days apart * * *" (People v. Hyche (1978), 63 Ill. App.3d 575, 578, 380 N.E.2d 373, 376, aff'd (1979), 77 Ill.2d 229, 396 N.E.2d 6; People v. Daniels (1976), 35 Ill. App.3d 791, 797, 342 N.E.2d 809, 813), Hyche cites Daniels, which in turn cites People v. Pullum (1974), 57 Ill.2d 15, 309 N.E.2d 565. Pullum involved an armed robbery on September 4, 1970. On September 20, 1970, the defendant was stopped by police officers for running a red light. When the defendant failed to produce a license and explained the car was borrowed, the police ran a check and discovered it was stolen. A post-arrest search revealed cannabis. After setting out the statute, the court concluded:

"Here the defendant was confronted with wholly unrelated charges. The crimes charged occurred 16 days apart, were wholly dissimilar, and contained no common elements. The only thread of continuity between the two offenses is that the defendant was in possession of marijuana and the 1970 Cadillac at the time of his arrest. The record does not indicate that the possession of marijuana at the time of the arrest for armed robbery was in any way connected with the armed robbery.

We do not find, as did the appellate court, that the marijuana charge and armed-robbery charge are a part of the same comprehensive transaction, and we hold that the failure to grant the motion to sever constituted reversible error." (People v. Pullum (1974), 57 Ill.2d 15, 18, 309 N.E.2d 565, 566.)

It can be seen that, while the court noted the 16 days between the crimes, the interval was not the basis of its holding. The Hyche court recognized this in stating that "we do not say that the mere passage or nonpassage of a certain amount of time is determinative of whether charges are properly joined * * *." (People v. Hyche (1978), 63 Ill. App.3d 575, 578, 380 N.E.2d 373, 398.) We believe this is the better view and hold that, under the circumstances at bar, the time involved does not automatically eliminate the acts at bar from the category of a comprehensive transaction. We note parenthetically that a longer ...


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